LAS VEGAS (KLAS) — A man injured when a gas station clerk shot him after an argument that began over not wearing a mask — before the clerk turned the gun on himself – is now suing the company.

The shooting victim, Max Smietana, had walked into the Terrible Herbst convenience store near Centennial Center Boulevard and Azure Drive around 8:30 a.m. on Feb. 6. It was several days before Gov. Steve Sisolak lifted Nevada’s mask mandate.

Upon entering the store, the clerk told Smietana to put on a mask. The victim refused, according to police, and walked up to the counter with several bags of chips to purchase.

The gunshot wound in Max Smietana’s back provided by his attorney. (KLAS)

“He had told the clerk that, ‘It’s in my pocket, I’ll put it on,’” Smietana’s attorney, Sean O’Callaghan, said. “The clerk grew more and more confrontational.”

The clerk refused to serve Smietana, who then walked out of the store without paying for the chips for his fiancé and their three children, who were sitting in a car outside, a police report and the lawsuit said.

“The clerk, at that point, did not want to serve him,” O’Callaghan said. “He still wanted to take the snacks to his kids, so he just walked out.”

“We were at a pump, and I heard the shots, and I saw the clerk shooting the guy,” a caller said in part of a 911 call obtained by the 8 News Now I-Team. “And then the guy stole some chips… and the clerk went out to take pictures.”

Max Smietana’s entrance and exit wounds as provided by his attorney. (KLAS)

The two men then began to physically fight when the clerk pulled out a handgun and fired several rounds at the victim, striking Smetana once in the back, O’Callaghan said.

The clerk, whose name is redacted in police documents, also called 911.

“He was stealing from the store and then — I was going outside to get his license plate and he literally attacked me,” the clerk tells a dispatcher in one 911 call. The clerk then shot himself several minutes later.

If the clerk had survived, he would have been charged with battery with the use of a deadly weapon, police said.

The victim was able to drive to a nearby hospital and receive treatment.

“This should have never happened. This was avoidable,” O’Callaghan said, adding the lawsuit seeks damages for the employee’s behavior. The lawsuit claims the company failed to provide a “safe environment” for its customers, including Smietana.

“He’s angry,” O’Callaghan said about his client. “He’s upset that this incident could have resulted in his children not having a father anymore.”

Smietana and his now-wife and their children have relocated to Texas.

The I-Team reached out to lawyers for Terrible’s on Friday but had not received a response by the afternoon. Lawyers for the company have yet to respond to the filing in court, except to request a jury trial.

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